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Binkley v. Tennessee Diecasting-Harvard Industries12/18/2003
recurrent disc rupture and returned the employee to work full duty without restrictions and with no permanent physical impairment.
The employee was not satisfied with his treatment from Dr. Canale. He felt that his pain was similar to the pain he had experienced from his earlier 1988 disc injury . He told his employer he was going to seek treatment at the V.A. Hospital. In the meantime, the employer's workers compensation carrier referred him to Dr. John Brophy, another Memphis neurosurgeon. Though Dr. Brophy sent him to a work hardening/physical therapy program the employee did not participate in it because it was going to require him to sign a form that stated he would not seek treatment from anyone other than Dr. Brophy. Since he was also being treated at the V.A., he refused to sign the form. Dr. Brophy then released him and returned him to work at full duty without restrictions and with no permanent physical impairment.
He was offered light duty work by his employer in October, 1997, which he performed for a very brief period of time. He left the job voluntarily and never returned to full duty as per the instructions of Drs. Canale and Brophy.
The employee was treated at the V.A. Hospital in Memphis between 1997-1999. He then moved back to Washington State in 1999, and began treatment at the V.A. Hospital there in July, 1999, undergoing back surgery on December 30, 1999. The operative notes reflect that the surgeon found scar tissue, fatty tissue, and a large disc fragment at the L5-S1 level.
Following his surgery, the employee continued to seek treatment for his back problem from the V.A. Hospital rather than from physicians authorized by his employer. Dr. Samuel Pieper, a psychiatrist with the V.A. Hospital in Murfreesboro, who never examined or treated him, reviewed the records of his treatment at the V.A. Hospitals. Dr. Pieper testified that the employee sustained a permanent impairment from his on the job injury of September, 1997, based primarily on the fact that a disc fragment was found at the L5-S1 level during surgery. Dr. Pieper opined that the employee had sustained a 10% permanent physical impairment from his 1988 back surgery and that, in accordance with the AMA Guidelines, he should receive an additional 2% for his second surgery at the same level in 1999.
Appellant contends that the trial court should have denied compensability of this claim because two highly respected neurosurgeons, Drs. Canale and Brophy, testified that Mr. Binkley did not sustain a permanent impairment from his injury of September, 1997. They also argue that the credibility of the V.A. records and its surgeons is somewhat "jaundiced" and that a patient, if he looks long and hard enough, can always find a surgeon who will perform surgery.
This is an interesting argument which may be valid in some cases. In this case, however, not only did the employee consistently complain of back and leg pain from the date of his injury in September, 1997 until his surgery on December 30, 1999, but when surgery was ultimately performed at the V.A. Hospital, a large disc fragment was found and removed from his back. Dr. Pieper opined that the disc fragment was the abnormality that showed up on the MRI, myleogram and CAT scan and that these diagnostic test results had been incorrectly interpreted by Drs. Canale and Brophy. It was his opinion that the disc fragment that was found as a result of the December, 1999, surgery had caused the employee's pain since September 29, 1997.
The trial court found that the preponderance of the evidence supported the employee's claim that he sustained a ruptured disc when he lifted the oil bucket on September 29, 1997 and
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